Unit 2: Legal Methods

Introduction

Law, as an independent discipline, has its own sources and methods. This chapter will introduce basic knowledge about legal methods. It will teach students to engage with legal texts and methods of interpretation. It will familiarize students with how lawyers reason and with characteristics of legal education. Besides, the chapter will introduce students with the basic knowledge about methods of legal reasoning including judicial syllogism and analogy. The subject of interpretation of statutes and contracts will also be addressed. In so doing, canons of interpretation, i.e. textual, historical, systematic and teleological interpretation shall be introduced to the reader. Furthermore, students will be familiarized with canons of construction in common law tradition. Finally, the chapter will familiarize the students with the issues of gaps in law and conflicts between legal norms.

Foundations

This chapter will familiarize readers with basic methodological tools of lawyers. It is not possible to understand and explain the law and legal process without a basic understanding of the arguments of lawyers and judges. Lawyers make these arguments in support of their clients and judges make them in the course of forming their opinions. Therefore, mastering these methods is essential for any person who wants to comprehend how a legal system functions. “Thinking like a lawyer” always deserves high praise. But why? Is there something unique about thinking like a lawyer and ordinary thinking? Other professions also have their special expertise. Yet, one does not hear similar remarks like “thinking like a doctor” or “thinking like an engineer.” There is a significant difference between a lawyer and other professions. Consistency of solutions and legal certainty are the basic requirements for the legitimacy of any legal order. In this regard, coherent applications of legal methods with respect to each case provides, to some extent, certainty in the application of law. Legal methods are used by lawyers for convincing the judge while judges use them for convincing the parties, providing an insight into why they decided as such, as well as for convincing the appellate courts. In general, legal methods are concerned with convincing the people that the legal system in which they live in is just. Before digging deeper into legal methods, information regarding the nature of law, the influence of the sources of law on the methods employed by lawyers as well as the influence of legal education on legal methodology will be given. Lawyers look to law for answers, which fundamentally means looking to the sources of law. Each legal system has, thus, its sources and methods which identify how law is, in a particular case, to be found. Different legal systems possess dissimilar patterns of legal reasoning. In Germany, under the influence of Idealist thought shaped by Kant, jurists like Feuerbach emphasized the vital role of systematization in law. According to this approach, a science should process through systematization. Legal science is thus defined as systematic thinking about actual law (legal dogmatic), encompassing every occupation with the law, including its making, application, exposition, and transmission. By the same token, the French Cartesian propensity for conceptual thinking, whereby particulars are subsumed under universals by an act of categorization, according to Steiner, explains why the deductive method, when applied in a legal context, is considered to have the best ability to settle legal issues conclusively in France. This approach to law as a science has also influenced the reigning ideal image of jurists particularly in the nineteenth century, which is described by an eminent legal scholar as follows: A higher civil servant with academic training, sits in his cell, armed only with a thinking machine, certainly one of the finest kinds. The cell’s only furnishing is a green table on which the State Code lies before him. Present him with any kind of situation, real or imaginary, and with the help of pure logical operations and a secret technique understood by only him, he is, as is demanded by his duty, able to deduce the decision in the legal code predetermined by the legislature with absolute precision.

Today, legal scholarship is at times criticized as case law journalism. And more effort has been devoted tidying up after judges. Despite the issue of arbitrariness and vagueness in law, the scholars in civil law tradition view the law as a system of principles and axioms. Legal knowledge is, for such a jurist, systematically collected propositions in an abstract world of concepts. Consequently, legal methodology in civil law tradition is a scientific discipline which pertains to defining and systematizing the knowledge, which can be regarded as a scientific discipline dealing with methods of discerning law and legal phenomena. There is, therefore, in continental Europe, a propensity to think and work like a scientist among jurists.

Legal Education

There are different kinds of approaches to legal education such as American approach and German approach. American approach is described by Karl Llewellyn: “We have discovered that students who come eager to learn the rules and who do learn them, and who learn nothing more, will take away the shell and not the substance. We have discovered that rules alone, mere forms of words, are worthless. We have learned that the concrete instance, the heaping up of concrete instances, is present, vital memory of multitude of concrete instances, is necessary in order to make any general proposition, be it rule of law and any other, mean anything at all. Without the concrete instances the general proposition is baggage, impedimenta, stuff about the feet. It not only does not help, it hinders.”

Likewise, the principal object of German legal education is to develop the skill of case resolution method. Unlike the case method of the American law school, success in resolving the German hypothetical cases depends on the law student’s knowledge of the remedial scheme and a comprehensive and systematic examination of the relevance of the various provisions to the facts at hand. In general, in German system of legal teaching, greater emphasis is placed on the framework for the analysis than on the result. It needs to be highlighted that a hypothetical case cannot be resolved unless one finds authority in a code provision or a well-established case-law principle. Such activities in Germany are typical examples of civil law tradition, since it is mostly about subsumption.

Legal Reasoning

Although lawyers may survive without logical formulations, they cannot survive without logic. In the following cases, we will deal with basic tools and methods of legal reasoning.

1. Deduction: Judicial Syllogism; A typical judgment in a legal system based on civil law tradition is a logical deduction or series of logical deductions drawn from pre-existing premises. Deduction means reasoning that moves from general premises, which are known or presumed to be known, to certain conclusions. Induction, by contrast, is reasoning that moves from specific cases to more general, but uncertain, conclusions.
2. Analogy; Known as one of the most commonly used arguments in legal reasoning in every legal system, legal analogy simply means finding the solution to a problem by reference to another similar problem and its solution. An analogy consists of an observed similarity between two phenomena, namely source and target. Analogical reasoning is an extension of the source to the target. Furthermore, it is an extension of a legal rule from one case to another due to a similarity which is regarded by the judge to be material.

Interpretation Statutes

Interpretation is the process of clarifying the true meaning of a written document. As a result of interpretation, the interpreter shall decide whether the rule in consideration is applicable to the case at hand. To be sure, interpretation is not confined to statutes; other written texts such as case law, contracts, testaments, or international treaties require interpretation as well. Indeed, the common law tradition takes cases as its starting point, in contrast to civil law systems that focuses on reasoning on the basic rules contained in codes and in other written sources. Interpretation is a common method employed by all the so-called textual sciences like literature, philology, or theology. Law shares with these disciplines the characteristic that it is an interpretative discipline. The difference between a legal interpretation and interpretation of poem, for example, lies in the fact that the former is a binding interpretation exercised, in most cases, by a judge. Indeed, as put by Aybay: “Only the courts have the final say on what a certain legal rule means. Since, for practical purposes, it is only the interpretations made by the courts through judicial decisions that have legal and final effect, it can be argued that the meaning of a legal rule is what the courts say it is.” Indeed, interpretation of legislative provisions today is mainly a task belonging to the courts when they face with problems of interpretation arising out of legal disputes. Yet, this has not always been the case in France. Given the strong conception of separation of powers of the French legislator, the so-called référe législatif was introduced in 1790. This institution forced judges to refer a case to the legislature on questions of statutory interpretation. It soon proved unworkable and was finally abolished in 1837.

Interpretation in law is one of the most important tasks of jurists, especially in a legal system which is characterized by codifications. A sound and reasonable interpretative practice by courts is highly important in maintaining the consistency and coherence of a legal system. Particularly, if one considers the necessity of adapting codes and statutes in a codified system to rapid social transformation, it would be ill-advised to stick to a strict construction of meaning of code provisions. As a matter of fact, in codebased civil law systems, provisions of a code are generally drafted loosely and rely, in many cases, on general statements of principles rather than the narrow and detailed legislative provisions to be found in the common law tradition. There is, therefore, a direct relationship between drafting a code and its interpretation. These are mutually independent.

The Interpretation of Contracts

In many respects, the interpretation of contracts resembles to that of statutes. However, there some aspects of interpretation that are peculiar to the contracts. For example, when interpreting wills, the interpreter must give effect, as far as possible, to the testator’s intention expressed in the will. Otherwise, canons of construction employed in the interpretation of contracts and statutes are pretty much similar. For instance, the basic canon of construction in interpreting statutes reads as follows: The words of a contract should be construed in their grammatical and ordinary senses, except to the extent that some modification is necessary in order to avoid absurdity, inconsistency, or repugnancy.

The principles of European contract law in this regard state that:

1. A contract is to be interpreted according to the common intention of the parties even if this differs from the literal meaning of the words.
2. If it is established that one party intended the contract to have a particular meaning, and at the time of the conclusion of the contract the other party could not have been unaware of the first party’s intention, the contract is to be interpreted in the way intended by the first party.
3. If an intention cannot be established according to (1) or (2), the contract is to be interpreted according to the meaning that reasonable persons of the same kind as the parties would give to it in the same circumstances.

In the common law of contracts, the following guiding principles are also employed in interpreting contracts:

• A contract will be construed so far as possible in such a manner as not to permit one party to it take advantage of his wrong.
• Where the words of a contract are capable of two meanings, one of which is lawful and the other unlawful, the former construction should be preferred.
• The expression of a term which the law implies as a necessary part of the contract has no greater effect than the implied term would have had.
• The ejusdem generis rule: If it is found that things described by particular words have some common characteristic which constitutes them as genus, the general words which follow them ought to be limited to things of that genus.

The Role of Case Law and Its Interpretation

Two elementary components of a system of precedent are as follows:

• According to the rule of stare decisis, lower courts must follow the decisions of higher courts in the same court hierarchy. Some courts are even bound by their own previous decisions (rationes).
• A reliable system of case reporting is necessary, enabling judges and lawyers to find out a precedent correctly.

Gaps in Law

Gap is one of the most contested concepts in legal methodology. According to the assumption of legal positivism, a state legal order is a complete system without gaps. The prevailing view is, however, that gaps exist and must be closed. Although gapfilling in law uses the methods of interpretation, the distinction between interpretation and gapfilling needs to be acknowledged. Indeed, an interpretation is the possible meaning of the terms in which a norm is stated. In this regard, a decision which remain within the literal meaning of a statute’s wording is considered as interpretative. If a decision, on the other hand, goes beyond the literal meaning such an activity is regarded as gap-filling. In most legal systems in the world, including Turkish law, gap-filling is permissible. Analogy plays an important role in closing gaps within the legal system. Gap-filling is, in a sense, a judicial law-making, which is also called as judgemade law. In certain instances, legal systems limit closing the gaps. In criminal law, for example, for the sake of legal certainty, analogical or customary justifications of criminal sanctions are excluded. Accordingly, in criminal law, the possible meaning of the wording of a statute marks the outer limit of admissible judicial interpretation. And the judge determines the meaning of the wording from the citizen’s point of view.

Conflicts Between Legal Norms

Sometimes legal norms within a legal system may conflict with one another. Indeed, if there are several bodies that enact legislation that can apply to the same case, this would lead to, in some cases, to the conflict of rules. In this regard, the following solutions should be considered:

• One of the conflicting norms could be altered;
• An exception could be added;
• One of the conflicting norms could be invalidated.